What the Election Means for Journalism

Thinking about libel, regulations, legislation— and a nightmare scenario

Welcome to Second Rough Draft, a newsletter about journalism in our time, how it (often its business) is evolving, and the challenges it faces.

With a true watershed moment in American history very likely just 12 days away, I thought it would make sense for this newsletter about journalism to ask what’s at stake for journalism in the outcome, what might not be, and what might.

Let’s start with the obvious fact—so obvious that it sometimes gets overlooked—that Donald Trump hates the press even as he revels in its attention. In recent weeks he has threatened CBS News and ABC News, disdained or derided the New York Times, the Wall Street Journal editorial page (one of his chief apologists even as it repeatedly recounts all the ways he betrays the Journal’s traditional values and beliefs), the stray voices at Fox News that still occasionally mildly challenge him, Bloomberg News, the Economist, NBC News, the Washington Post and his own traveling press corps. He has called for the revocation of broadcast licenses, the suppression and/or arrest of those who reveal his shortcomings.

But what of this is serious and what just theater?

Remember “loosening” the libel laws?

Let’s start with what I think are actually the less serious threats (albeit with a caveat I will come to below). For years, beginning in the first of his three presidential campaigns, Trump, called for the “loosening” of the libel laws. But he doesn’t do this much anymore, even after being hit with a very costly defamation and sexual assault verdict (an unusual combination), having his one-time consigliere Rudy Giuliani bankrupted by another defamation case and having seen Fox News, usually his slavish mouthpiece, silenced on repeating his false claims about his 2020 defeat in the wake of its loss of more than three quarters of a billion dollars to end its own libel disaster.  

I think two things have come together to steer Trump away from libel law as an agenda item. First is that, unlike with respect to abortion and presidential immunity, Trump’s side has lost on this in the Supreme Court. There are only two or three justices on the Court (Thomas and Alito and possibly Gorsuch) who are willing to undo 60 years of settled constitutional law in this area. Even if Justice Sotomayor’s seat opened up in a second Trump term, that would still leave Trump at least one vote short. The retirement of Thomas wouldn’t help, and might actually hurt, if his replacement aligned more with Trump appointees Kavanaugh and Barrett on this issue.

Next, Trump may have come to realize, particularly from observing the Jean Carroll and Giuliani cases, that the libel laws afford him significant protection as a speaker who likes to defame people. If he can cast his smears as matters of “opinion” or ignorance, he’s largely in the clear. Moreover, the presidential immunity case, remember, is a criminal, not a civil decision, and won’t protect him here. Civil cases against a president are governed by the Paula Jones case, which caused Bill Clinton such grief.

In the agencies and Congress

Another area where the stakes for the press may be sometimes overstated is with respect to regulatory attacks on what Trump sees as his enemies in the press. Thus, the threat to revoke broadcast licenses, for instance, even if Trump could install toadies in agencies who would do his bidding and pursue such steps, would be unlikely to be sustained by the courts, especially when a disinhibited Trump has so plainly telegraphed the political motivations behind the actions. Trump’s loose tongue upended a number of administrative moves in his first term, and his notable, and seemingly accelerating disinhibition would further weaken his legal position moving forward. But, again, there is that caveat to come.

Next, and likely more problematic for journalism if Trump returns to the White House, are the withdrawal of administrative protections for reporters, which would be much easier for Trump to accomplish. The Biden-Harris administration has notably established such protections with respect to most Justice Department subpoenas to reporters, as well as with guidelines protecting reporters covering protests. These would probably be revoked early in a second Trump term.

With respect to possible congressional action, the two candidates would be very likely to take opposing positions on tax subsidies for the press (Trump against, Harris perhaps for), and a federal reporters’ privilege law (Trump against, Harris for), although we ought to recognize that such legislation seems unlikely no matter who wins.

the destruction of the Jeffersonian legacy?

Now we come to that caveat I have mentioned a couple of times. The analysis above supposes that we will continue to live under the Constitution of 1787, as amended and interpreted by the Supreme Court. That Constitution, among other things, provides that Donald Trump, no matter who wins on November 5, will no longer be president on January 21, 2029, at the age of 82 left permanently without its powers or protections. It’s pretty much impossible to envision a scenario in which Trump could get three quarters of the states to amend the Constitution to allow him a third term; at least 15 states are dark blue, and an amendment can be blocked by only 13.

An unprecedented response to the usual frustrations?

In fact, if Trump returns to the presidency in January 2025, he will be a president of a sort we have never had before: a new incumbent who is a lame duck on his first day in office. Second presidential terms since the 22^nd Amendment made them necessarily final terms have been uniformly frustrating for their occupants, and generally unsuccessful, particularly when compared with the president’s first term. The instances are Eisenhower, Reagan, Clinton, Bush 43 and Obama, and I don’t think there is an exception to those rules of rampant frustration and lessened effectiveness in the bunch.

Donald Trump won’t react well to the frustration; he never does. And he will fear the legal jeopardy that may come afterward, as he so clearly does now. My greatest concern about his possible re-election is that he will respond to the limits placed on him by courts and Congress and, yes, by press coverage— and try to guarantee a more complete and permanent immunity— by seeking to kick over the Constitution, the final bulwark limiting his power and constraining his behavior.

I don’t know what Trump’s Reichstag Fire incident might be, but I know he could find one, perhaps declaring martial law or announcing that the Constitution is suspended— both of which are beyond the power of a mere elected president. Yet, the experience of the last eight years teaches us that fewer individuals and institutions will stand in his way if he does so than we might hope. Whether enough would step up to defeat a self-coup only time and events will tell us.

So that’s the caveat. Journalism is not only the sole industry specifically protected in the Constitution, it is also the industry most dependent on the Constitution for its security, indeed for its continued robust existence. If the Constitution falls to Donald Trump’s second coup attempt after the people return him to office following his first, there will, as Thomas More says in the film A Man for All Seasons, be no one to save us, “the laws all being flat.”

If you can think of anything you can do to help protect us from that fate in the next 12 days, I hope I have just given you yet another reason to do it.